Decisions to Watch – North Carolina Court of Appeals Employee Cases

Four recent decisions by the North Carolina Court of Appeals relate to Workers’ Compensation issues and have the potential to impact your business. The following overview highlights these cases. If you have questions about any of these decisions or other Workers’ Compensation matters, please contact Kurt at (336) 232-0655.

If you have employees that reside more than 50 miles from their place of employment—BEWARE!

In a case of first impression, the North Carolina Court of Appeals unanimously held in Falin v. The Roberts CompanyField Services that post maximum medical improvement (“MMI”) job offers must be within 50 miles of the employee’s residence in order to be suitable. In this case, an employee took a construction job with an employer that was over 400 miles from his residence. After he was released at MMI, the employer offered him a job as a tool clerk that was 338 miles from his residence. While the evidence presented showed that the job satisfied the suitability criteria as to age, education and prior employment, the court dismissed the arguments that geographical limitation was just one of several factors to be weighed. It held that the employee could refuse the job because it was further than 50 miles from his residence, although the job at the time of injury was farther away.

This decision could very well impact employers in the construction and trucking industries, or any employer that hires an employee to work an out of town job and the employee is hurt. The case involves an issue of first impression and the employer has indicated that it plans to petition the state Supreme Court for discretionary review.

The Parsons presumption states that once an employee’s injury is deemed compensable and the employer has filed a Form 60 accepting the injury, there is a rebuttable presumption that additional medical treatment is directly related to the originally accepted injury.In Wilkes v. City of Greenville, the North Carolina Court of Appeals unanimously rejected the employer and carrier’s argument that the Parsons presumption dids not apply to injuries that were not initially accepted. The court held that the presumption applies to requests for medical treatment for injuries or symptoms even when they are not the “precise injury” accepted as compensable. Further, it held that the Commission misapplied the law when it denied the employee’s request for additional medical treatment on the grounds that he failed to meet his burden of showing that the anxiety and depression he was suffering from, which was not initially accepted, were the result of the accident, and remanded the case to the Commission to properly apply the presumption.

This decision potentially impacts any case in which a Form 60 was filed, or a Form 63 where a denial has not been filed within the requisite time frame. It will potentially make it more difficult and more costly to defend claims for an injury to a new part of the body. A petition for discretionary review has been filed with the state Supreme Court, and in the interim, a temporary stay of the decision has been granted.

In an unusual set of events, an injured employee already on Worker’s Compensation was involved in a car accident on his way to the doctor to get a work restriction note. He hired a second attorney for the personal injury case and disbursed the third-party settlement without reimbursement of the workers’ compensation lien, or a superior court order reducing or eliminating the lien, and without an Industrial Commission order allowing distribution of the funds. Based on the court’s ruling in this case, he lost his right to Workers’ Compensation benefits for the second injury because he failed to allow the employer/carrier that right to participate in the settlemenet process.

This decision potentially impacts any case involving a third-party claim. A petition for discretionary review has been filed with the state Supreme Court.

Expert Testimony Holds

Pickett v. Advance Auto Parts is a case where the North Carolina Court of appeals rejected attacks on the weight of expert medical testimony, even though the physician’s doctoral dissertation was on a medical topic other than for which his opinion was offered. The employer’s attorney also argued against the weight of the testimony because the medical expert had not worked at any position for very long.